Tuesday, November 06, 2007

Written on October 5, 2006 by Randy Flood

Newsweek recently published (September 25, 2006) an article titled “Fighting over the Kids”. This was an article describing the phenomenon of battered women loosing custody of their children due to batterers using the parental alienation defense. Domestic Violence advocates and some Family Court Councils purport that parental alientation is “junk science” and is a “cancer in the family courts”.

Parental Alienation allegedly occurs when children reject or are systematically alienated from a parent. The unique aspect of the alienation is that it isn’t created by the experiential relaionship with the alienated parent, however by the alienating parent or the dynamics of a high-conflict divorce process. In other words, the children may reject the alienated parent while remaining attached and loyal to the alienating parent out of fear, love, or confusion. The children experience, and as a result, develop an idealogy that it isn’t safe for them to love both parents. They must denigrate and reject one, while idealizing and supporting the other.

In the Newsweek article, they cited a case in which a mother, Genia, lost custody of her children and was barred from contacting them. Is that not a case of Parental Alienation as it is defined? Reportedly, the children are alienated from their mother not due to their experiential relationship with mother, but because of the father’s campaign to alienate her from the children. His motivation? Perhaps it is an extension of his control and abuse, taking away her “prize possesion”, the children. Imagine how that would make him feel powerful or perhaps vindicated; “see, you shouldn’t have divorced me”.

Despite the criticism regarding the origins and applications of parental alienation, it is a well documented phenomenon in divorce cases. Peer reviewed journals such as the Family Court Review have published several articles regarding parental alienation and its intersection with domestic violence. Those who do the work in the trenches and and sit on the benches know very well the blank stare of the child who refuses to go to mom or dad’s house, despite no sound evidence of poor parenting.

In the same vein, those of us who work with mental illness and read professional journals about this problem, know very well about individuals who are psychotic that display poor judgment and aggressive behavior without any conscious intent to harm anyone, yet do. We also get angry at criminals who use the insanity defense in an attempt to absolve themselves from criminal behavior. Do we denounce mental illness in an effort to hold criminals accountable, and protect the victims of crime? No, we evaluate each and every case to determine the truth in that particular case.

I am dismayed by the current efforts of domestic violence advocates to denounce parental alienation in an effort to take away a batterer’s arsnel. Although it is a noble cause, it isn’t professional, it isn’t judicious, and it isn’t ultimately advocating for the best interests of all children. It is advocating for a discipline, an idealogy, and it is, in effect, trying to simplify a very complicated issue facing Family Courts. It is black and white, litigous thinking, not allowing for depth, dynamics, and nuances.

Those of us who work with batterers understand very well that they are masters of obfuscation. They will bend, twist, and shade facts to avoid accountability and shift blame. Accordingly, Parental Alienation becomes a high powered weapon for them in courts. Some of us who work in domestic violence get scared and angry about this and reflexively seek to remove “the weapon” from society. It is understandable. When your daughter gets shot and killed by a criminal with an unregistered gun, you may wish to rid society of guns to feel safer. A more judicious and less emotionally relexive response is to work on gun laws that develop polices of getting guns out of the hands of criminals and only into the hands of responsible citizens.

This is what I advocate to the Family Courts. I’ve done hundereds of custody evaluations as well as worked with hundreds of batterers. I’ve seen batterers obsessively pursue control over their partner by alienating the children from their ex-wife. I’ve also seen angry, vindictive mothers who act out their abadonment rage systematically by alienating their children from a father with no history of poor parenting. And, I’ve seen cases that are dynamic. One parent has a history of problems such as substance abuse, poor parenting, or abusive behavior toward their partner. This parent experiences a “wake up call” from the divorce and begins a legitimate path to recovery. In other words, they begin changing. Nonetheless, the other parent is understandably traumatized from the past and remains wounded, fearful, and untrusting. This wounded parent begins acting this out with parental alienation tactics. As such, the level of fear and attendant requests for restriction and limitations of parenting time emanates more from a wounded parent with unresloved trauma than current realities. When this happens, the courts needs to afford the traumatized parent treatment not collude with their protracted trauma response by restricting the other parent’s parenting time. At the same time, the courts need to remain vigilant in holding the “recovering parent” accountable.

The real cancer in Family Courts is unwavering advocacy of a rigid idealogy interfacing with a litigious process that promotes bi-polar thinking of winners and losers: Is it domestic violence or parental alienation? This cancer progresses to thinking, “if batterers use parental alienation effectively as a defense to win custody, then we should consider parental alienation junk science and eradicate its use in court”. This is fear based, idealogically based, and it will not forward the best interests of ALL children.

We need to train professionals, including judges, on the intersection of domestic violence and parental alienation. Then we need to evaluate and process each family case by case. Will mistakes be made because we are human? Yes! Do some criminals pretending to be mentally ill get reduced sentences? Yes, but it happens less and less as forensic psychology becomes more advanced in evaluating the insanity plea. I propose that we continue to study, research, and evaluate parental alienation, rather than throw it out. The more we learn about how vindictive parents can effectively alienate children from a good and loving parent, the more we can protect parents like Genia and her two children from Parental Alienation by a batterer.

A federal court has ruled that social workers have to respect the U.S. Constitution regarding privacy and parental rights, and if they don't they may be held liable.

The ruling comes in an Arizona case in which social workers, accompanied by Maricopa County deputy sheriffs, made unsupported threats to place a family's children in custody and arrest the parents if they were not allowed to make what ended up being an allegedly illegal search of the family's home.

U.S. District Judge Earl H. Carroll ordered that a lawsuit by the family against the social workers and sheriff will be allowed to continue, because the social workers' concerns were based on "an anonymous tip that the … Loudermilk children were being neglected and that plaintiffs' home was uninhabitable."

However, the judge said that under federal law, an anonymous tip, "without more, does not constitute probable cause."

"Social workers and sheriff's deputies had come to the home … demanding entry based on a six-week-old anonymous tip that the newly constructed home was unsafe for children," the organization said.

"The Loudermilks declined consent, as was their right under the Fourth Amendment. After an escalating confrontation at the front door that lasted 40 minutes, the social workers, backed by no fewer than four deputies, threatened to take the Loudermilks' children into custody and place them in foster care if the Loudermilks continued to deny them entry… An assistant attorney general repeated this threat to HSLDA attorney Thomas Schmidt, who was assisting the Loudermilks during the confrontation," the HSLDA report said.

Under duress, the family allowed the social workers and deputies inside, who found nothing wrong, the report said.

But as a result of the search, the family sued the social workers and others citing the violation of their Fourth Amendment rights in the search, and violations of their 14th Amendment rights to privacy and family integrity because of the threats.

The judge, acting on motions submitted by the defendants to escape liability, agreed with the family.

"Defendants persisted in their threats to remove the children if Plaintiff Parents did not consent to the search, stating that [they] could arrest or handcuff the Parents in front of the children," the judge said.

"Based on the allegations set forth in the Amended Complaint, viewed in Plaintiff's favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law."

Even the assistant attorney general was cited for exerting "coercive pressure" through threats.

"The ruling in this case makes it clear that threatening to remove children to gain a parent's cooperation is unconstitutional," said James Mason, senior counsel for the HSLDA. "We hope that this ruling will change this common tactic used by investigative caseworkers all over the country."

"There you have it, [social agencies and workers] cannot threaten parents with court orders or the removal of children because parents assert their Fourth and 14th Amendment rights and refuse to cooperate," added Thomas Dutkiewicz, of the Connecticut DCF Watch organization.

"Parents do not have to cooperate with DCF whatsoever and DCF employees have to go away when parents deny them access to their home and children," he said. "DCF workers here in Connecticut are trained and instructed in this unconstitutional practice in order to conduct an unreasonable search and seizure of the home and child. They are to lie and threaten any way they can. All parents who were threatened should file a federal lawsuit against DCF, their workers, their supervisors and the police."

Now proceeding will be the lawsuit against Maricopa County Sheriff Joe Arpaio, deputies Joshua Ray, Joseph Sousa, Richard Gagnon and Michael Danner, social workers Rhonda Cash and Jenna Cramer, and Assistant Attorney General Julie Rhodes.

The judge noted that the social workers misrepresented that they had a court order for an inspection of the home, but refused to provide it. He also noted the deputies were uncooperative, refusing to provide the family their cell telephone number so the HSLDA attorney could talk to them.

The claim against Rhodes stemmed from her advice to the family that the social workers were not bound by the Fourth Amendment in their intent to search the home.

The judge said verbal threats generally are not actionable in a federal civil rights proceeding, but in this case, "courts have held that a threat constitutes an actionable constitutional violation in certain circumstances, including 'when the threat is so brutal or wantonly cruel as to shock the conscience…'"

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Parental Rights Amendment - S.R. 519

When I despair, I remember that all through history the ways of truth and love have always won. There have been tyrants, and murderers, and for a time they can seem invincible, but in the end they always fall. Think of it--always.